BROWN v. ALLEY

COMBS, V.C.J.,

dissenting, with whom KAUGER and TAYLOR, JJ., join:

¶ 1 I disagree with the majority’s determination that Appellant is estopped from as*501serting she should be appointed’ Personal Representative of Decedent’s estate. Appellant, as the surviving spouse of the Decedent, has a prior'right of appointment pursuant to 58 O.S. 2011 122, that is unaffected by the void ceremonial and common law marriages later attempted by herself and Decedent, respectively. Accordingly, I respectfully dissent.

¶2 Marriage is a personal relationship which arises out of a civil contract. It requires the consent of parties who must be legally competent to contract. Title 43 O.S. 2011 1. One of the requirements, for legal competency to enter into the marriage contract is that the individual not be already married. Title 43 O.S. 2011 3(A). See Brokeshoulder v. Brokeshoulder, 1921 OK 412, 84 Okla. 249, 204 P. 284, Syllabus, 84 Okla. 249, 204 P. 284.

¶ 3 Oklahoma does not recognize the concept of common law divorce. See Chapman v. Parr, 1974 OK 46, 32, 521 P.2d 799. Divorce is wholly a creature of statute and the absolute power to prescribe conditions relative thereto is vested in the state. Williams v. Williams, 1975 OK 163, 9, 543 P.2d 1401. The statutory grounds of divorce are exclusive, and the courts have authority in this field to do only that which is prescribed by the legislature. The legislature has vested the courts of this state with ultimate control' over the dissolution of marriage. Williams, 1975 OK 163, 543 P.2d 1401, 10. It is undisputed in this cause that Appellant and the Deceased were married in 1995 and never divorced by court proceeding. Unquestionably, neither of them were legally competent to enter into other marriages, be they ceremonial or common law.

¶ 4 Further, the Oklahoma Constitution specifically prohibits plural marriages. Okla. Const., Art. 1, 2 provides in pertinent part: “ [polygamous or plural marriages are forever prohibited.” This Court has determined previously that plural marriages, being prohibited by the constitution, are void ab’ initio and such a marriage, whether ceremonial or common law, does not confer on either of the parties any of the rights or privileges of a valid marriage. See Tatum v. Tatum, 1982 OK 62, 18, 736 P.2d 506; Whitney v. Whitney, 1942 OK 268, 192 Okla. 174, 134 P.2d 357, Syllabus, 12-18, 192 Okla. 174, 134 P.2d 357. The trial court erroneously determined that the relationship between Decedent and Ap-pellee met all the requirements of a common law marriage. One of those requirements is legal competency to enter the marriage contract, which Decedent lacked. Mueggenborg v. Walling, 1992 OK 121, 5, 836 P.2d 112; Rath v. Maness, 1970 OK 111, 15, 470 P.2d 1011 (criticized by Mueggenborg, but on other grounds).

¶ 5 Despite her legal status as Decedant’s wife at the time of his death, the majority determines that Appellant is estopped from asserting she should be appointed Personal Representative of Decedent’s estate. Equitable estoppel is a legal concept which bars a party from alleging or denying certain rights which might otherwise have existed because of the party’s voluntary conduct. Sullivan v. Buckhorn Ranch Partnership, 2005 OK 41, 30, 119 P.3d 192; Hoar v. Aetna Casualty & Surety Co., 1998 OK 95, 13, 968 P.2d 1219; Apex Siding & Roofing Co. v. First Federal Savings & Loan Assoc. of Shawnee, 1956 OK 195, 6, 301 P.2d 352. It requires good faith reliance upon a representation or position by the party asserting estoppel. Sullivan, 2005 OK 41, 30, 119 P.3d 192; Hoar, 1998 OK 95, 13, 968 P.2d 1219; First State Bank v. Diamond Plastics Corp., 1995 OK 21, 39, 891 P.2d 1262. This Court noted in detail the requirements for equitable estoppel in Sullivan, where we stated:

The essential elements necessary to establish equitable estoppel are: first, there must be a false representation or concealment of facts; second, it must have been made with actual or constructive knowledge of the real facts; third, the party to whom it was made must have been without knowledge, or the means of discovering the real facts; fourth, it must have been made with the intention that it should be acted upon; and fifth, the party to whom it was made relied on, or aeted upon it to his or herdetriment.

Sullivan, 2005 OK 41, 31, 119 P.3d 192 (footnotes omitted) (citing Burdick v. Independent School Dist. No., 52 of Oklahoma County, 1985 OK 49, 13, 702 P.2d 48; Midland *502Mortg. Co. v. Sanders England Investments, 1984 OK 10, 6, 682 P.2d 748; Walker & Withrow, Inc. v. Haley, 1982 OK 107, 7, 653 P.2d 191).

¶ 6 The requirements of equitable estoppel have-not been met in this cause. Appellee was aware of Appellant and Decedent’s marriage when she was named personal representative. As the majority notes: “[Ami] said the court did not ask about Rhonda, and she did not raise the issue.” Estoppel is used to prevent injustice and promote justice, and should not be used to work a positive gain to a party. Sullivan, 2005 OK 41, 30, 119 P.3d 192; First State Bank, 1995 OK 21, 40, 891 P.2d 1262.

■¶ 7 The majority’s reliance on In re Estate of Allen, 1987 OK 45, 738 P.2d 142, is misplaced because that cause is factually distinguishable. In Allen, this Court’s application of the doctrine of equitable estoppel to bar a wife’s claim for a share of her deceased husband’s estate was primarily based on the wife’s assertion of a later common law marriage in a divorce proceeding, resulting in a non-appealable divorce decree even though the common law marriage was void ab initio. Allen, 1987 OK 45, 5, 738 P.2d 142. The Allen Court stated:

The predicate facts in this case constitute affirmative acts which give rise to a legal change in appellee’s marital relationship with decedent. In particular, appellee’s cohabitation with Gould and her affirmative recognition of her subsequent common law marriage to Gould. We therefore find ap-pellee’s prior assertion of legal status and judicial finding and decree from which there was no appeal operates as a bar to her later inconsistent claim.

1987 OK 45, 7, 738 P.2d 142 (emphasis added).

In Allen, the application of equitable estoppel rested on the wife’s assertion in a court of law that she was married to .someone else, before trying to assert a claim on her real husband’s estate, rather than the act of attempting a void ab initio marriage in and of itself.

-¶ 8 Even were it not distinguishable, I believe Allen was wrongly decided and should not be followed by this Court, for two reasons. First, the Court’s decision in Allen is inconsistent with earlier cases concerning the application of equitable estoppel to estate claims. See In re Estate of Cox, 1923 OK 397, 95 Okla. 14, 217 P. 493 (“Although the wife deserts her husband, and enters into a bigamous marriage with another, with whom she lives until her husband’s death, in the absence of a statute, she cannot be precluded or estopped from asserting her interest in his estate.”); Brokeshoulder, 1921 OK 412, 64-65, 84 Okla. 249, 204 P. 284 (expressing willingness to apply estoppel only between parties to an illicit marriage when one party concealed their incapacity). See also Allen, 1987 OK 45, 1-6, 738 P.2d 142 (Kauger, J., dissenting). Second, the Allen Court partially based its decision on dicta from a prior opinion, Tatum v. Tatum, 1982 OK 62, 736 P.2d 506, specifically this statement:

We did, however, state affirmative acts may indicate a change in character of the marriage relationship and that such legal change could manifest itself through some outward recognition that the relationship had terminated. We noted affirmative acts which might be recognized as changing the legal status such as suing for divorce or separate maintenance, active resistance to reconciliation efforts .or cohabitation with another. Such indicia were found absent in that case.

Allen, 1987 OK 45, 6, 738 P.2d 142 (citing Tatum, 1982 OK 62,14, 736 P.2d 506).

Such reasoning is inconsistent with the statutory nature of termination of the marriage contract, and the requirement divorce be adjudicated by the courts.

¶ 9 The majority’s decision, and reliance on Allen, is effectively a determination that Appellant’s void attempted ceremonial marriage to Treece somehow altered her legal relationship as Decedent’s wife at the time of his death. It did not, as Oklahoma law concerning plural marriages and capacity to enter the marriage contract, discussed above, perfectly illustrate. Framing the issue as one of equitable estoppel does not alter this, as Allen is inapplicable and the modern require-*503merits for equitable estoppel emphasized by this Court on numerous occasions have not been met. Appellant, as the surviving spouse of the Decedent, has a prior right of appoint ment pursuant to 58 O.S. 2011 122, and should not be estopped from asserting that right because she was separated from Decedent and entered into a void ab initio ceremonial marriage with someone else.